Hemant Rajkumar Gurubaxani vs State Of Mah. Thr. Pso, Ps Sonegaon Dist. ...
2025 Latest Caselaw 6268 Bom

Bombay High Court

Hemant Rajkumar Gurubaxani vs State Of Mah. Thr. Pso, Ps Sonegaon Dist. ... on 30 September, 2025

2025:BHC-NAG:10028-DB


                        J-apl881.23                                                  1/10


                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               NAGPUR BENCH, NAGPUR


                                  CRIMINAL APPLICATION (APL) No.881 OF 2023


                        Hemant Rajkumar Gurubaxani,
                        Aged 32 years,
                        Occupation : Private,
                        R/o. Sharda Company Chowk,
                        Pritam Vihar Colony, Kamgar Nagar,
                        Plot No.44, Nagpur.                         :   APPLICANT

                                ...VERSUS...

                        1.   State of Maharashtra,
                             Through P.S.O., P.S. Sonegaon,
                             Distt. Nagpur.

                        2.   Pramod Chintaman Mohite,
                             Age 50 years,
                             Occupation : Servant,
                             Grade Assistant Police Inspector,
                             Police Station : Sonegaon,
                             Nagpur.                                :   NON-APPLICANTS

                        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                        Mr. Prakash S. Jaiswal, Advocate for Applicant.
                        Mr. M.J. Khan, Additional Public Prosecutor for Non-applicant No.1.
                        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                        CORAM                    :   URMILA JOSHI-PHALKE AND
                                                     NANDESH S. DESHPANDE, JJ.
                        RESERVED ON   :              16th SEPTEMBER, 2025.
                        PRONOUNCED ON :              30th SEPTEMBER, 2025.

                        JUDGMENT :

(Per : Nandesh S. Deshpande)

1. Heard. Admit. Heard finally by consent of learned

counsel appearing for the parties.

2. This is an application filed under Section 482 of the

Code of Criminal Procedure for quashing the First Information

Report, registered with non-applicant No.1 on 31.5.2023, bearing

F.I.R. No.181/2023.

3. As per the contents of the said first information report

on 30th May, 2023 the complainant i.e. non-applicant No.2 received

the information on phone at about 11.40 a.m. that Nagpur Airport

an airplane of Indigo Airlines is going to land in which a cricket

bookie, named, Kunal Sachdeo is boarding. On receiving the said

information the complainant along with his staff went to the airport

and after the plane landed Police took Kunal Sachdeo in custody.

The Police seized mobile phones and cash from the said person and

after interrogating him he told Police that his friend namely

Hemant Gurubaxani (applicant herein) is coming from Mumbai.

He further told that he has asked him (applicant) to collect his

extra luggage i.e. one half blue and half green Lenovo Company

bag. Thereafter, the applicant was called to the Police Station on

such information provided by said Kunal Sachdeo. In the Police

Station the Police seized mobile, laptop, said green bag, mouse,

cash and charger from the applicant. It is further stated in the

F.I.R. that from the mobile and laptop seized from the applicant as

also said Kunal Sachdeo it was found that they were using code

language to facilitate betting takes which was taking place online

on various websites and web application. It was further alleged in

the F.I.R. that some websites and web application which are not

genuine were found in the laptop and applicants have created fake

companies for accepting amounts from the public and thus have

cheated public and evaded government taxes. On the basis of these

allegations an F.I.R. was lodged under Sections 420, 465, 467 and

471 read with Section 34 of the Indian Penal Code as also under

Section 12A of the Maharashtra Prevention of Gambling Act and

Section 66(D) of the Information Technology Act. It is this F.I.R. of

which quashing is sought in the present application.

4. We have heard Mr. Prakash S. Jaiswal, learned counsel

for the applicant, who took us through the contents of the F.I.R.

and the relevant provisions of law. Learned counsel for the

applicant submits that there is no prima facie case against the

applicant herein and he is implicated in the offence only on the

confessional statement of the co-accused. It is further stated that

the present applicant and the other co-accused came to Nagpur

from different flight and in fact there was no cricket match on the

particular date of their arrest. It is thus the submission of the

learned counsel for the applicant that no offence much less as

alleged as taken place at Nagpur and, therefore, the prosecution/

Police Authorities at Nagpur have no territorial jurisdiction to arrest

and investigate the offence.

5. He also submits that as far as Section 420 of the Indian

Penal code is concerned there is no intention to deceive at the

inception and the contents of the F.I.R. do not satisfy any of the

requirement attracting that section. Relying upon the judgment in

the case of Gagan Harsh Sharma and another Vs. The State of

Maharashtra and another, delivered in Criminal Writ Petition

No.4361 of 2018, the counsel for the applicant submits that if an

act committed within the purview of Special Act then invocation of

provisions of Indian Penal Code would not be proper. It is further

submitted that even Section 12A would not be attracted in the

present case as said section contemplates power of Police to arrest

without warrant for printing, publishing or distributing any news or

information. No such contingency is articulated in the F.I.R. in the

present case and, therefore, the offence under that section is also

not made out. It is further submitted that even a meaningful

reading of the F.I.R. would reveal that there is no cheating by

personation which is required for offence under Section 66D of the

Information Technology Act.

6. On the other hand, Mr. M.J. Khan, learned Additional

Public Prosecutor for the non-applicant No.1 vehemently opposes

the application and states that prima facie the contents of F.I.R.

show commission of a cognizable offence and, therefore, the

application needs to be rejected. It is further stated that the

luggage of Kunal Sachdeo was taken away by the applicant and

when applicant was called for interrogation/investigation certain

objectionable material such as betting applications were found in

the said laptop. It is further stated that the present applicant has

destroyed the evidence after the Police Authorities had called him

for investigation from the said laptop. Thus, the non-applicants

submit that there is enough material which indicts the present

applicant.

7. We have carefully perused the material on record in

the light of legal provisions stated supra. Section 420 speaks about

cheating and dishonestly inducing delivery of property, while

Section 465 states about forgery and Section 467 speaks about

forgery of a valuable security, will or authority to make or transfer

any valuable security. Section 471 speaks about using as genuine a

forged document or an electronic record.

8. As can be seen from the F.I.R. in question that the

allegation against the present applicant is that on the direction of

one Kunal Sachdeo he picked up his extra luggage from the airport

in which certain objectionable betting applications were found. It

is not even the prosecution's case that the laptop belongs to the

applicant. In fact, in the present case statement of the applicant is

recorded on 3.6.2023 (wrongly mentioned as 3.6.2003) in which

he has stated that said Kunal Sachdeo did not meet him at the

airport. However, he received a call from said Kunal Sachdeo

requesting him to pick up his extra luggage which was

inadvertently left at the airport. It is thus clear that no offence as

mentioned in the various sections of I.P.C. are made out. For

attracting offence under Section 420 a person must commit

offence under Section 415 and the person cheated must be

dishonestly induced to deliver property to any person or make,

alter or destroy valuable security or anything signed or sealed and

capable of being converted into valuable security. Furthermore,

cheating is an essential ingredients for an act to constitute an

offence under Section 420. From the meaning reading of F.I.R. in

question it is revealed that no such act is attributed to the present

applicant.

9. Furthermore, as far as Section 12A of the Maharashtra

Prevention of Gambling Act is concerned, it is reproduced as

under :

"12A. Police-officer may apprehend without warrant any person who prints, publishes, sells, distributes or in any manner circulates any paper, news-sheet or other document or any news or information with the intention of aiding or facilitating gaming.

Any such person shall, on conviction, be punishable in the manner and to the extent referred to in section 4.

And any Police officer may enter and search any place for the purpose of seizing, and may seize all things reasonably suspected to be used or to be intended to be used, for the purpose of committing an offence under this section."

10. Thus, what is contemplated by Section 12A is the

power of the Police Officer to apprehend without warrant any

person who prints, publishes, sells, distributes or any manner

circulates any newspaper with an intention of aiding or facilitating

gaming. Gaming is defined in Section 3 of the said Act and includes

wagering or betting except wagering or betting takes place -

(a) on the day on which such race is to run, and

(b) in an enclosure which the licensee of the race-course, on which such race is to be run, has set apart for the purpose under the terms of the licence issued under section 4 of the Bombay

Race-Courses Licensing Act, 1912, [or as the case may be, of the Maharashtra Dog Race-Courses Licensing Act, 1976] in respect of such race-

course, [or in any other place approved by the State Government in this of behalf]

(c) between any individual in person, being present in the enclosure [or approved place] on the one hand, and such licensee or other person licensed by such licensee in terms of the aforesaid licence on the other hand [or between any number of individuals in person in such manner and by such contrivance as may be permitted by such licence; but does not include a lottery."

11. It can thus be seen that what is implicit in both these

sections is that there should be a publication as contemplated with

an intention of aiding or facilitating gaming on the day on which

such game is being held. Learned counsel for the applicant has

placed before us the schedule of Tata IPL 2023 which speaks that

the final was to be held on 28th May, 2023. This fact assumes

importance since the F.I.R. is dated 30 th May, 2023 for an incident

which happened in the even date. It is thus clear that the IPL 2023

was already over on 30th May, 2023 as the final was held on 28th

May, 2023.

12. In the backdrop of these facts, we are of the opinion

that no offence under section mentioned in the F.I.R. are made out

since the F.I.R. and the consequent charge-sheet filed after

investigation hopelessly fails to make out a case for offences under

said Sections. Continuing the prosecution against the applicant

would, therefore, be an abuse of process of law and the situation

would squarely fall within the various parameters laid down by the

Hon'ble Supreme Court in the case of State of Haryana and others

Vs. Ch. Bhajan Lal and others, reported in 1992 Supplementary (1)

SCC 335 and more particularly clause 1,3 and 7 of para 102 of the

judgment.

"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

13. We are, therefore, of the considered view that this is a

case where powers under Section 482 of the Criminal Procedure

Code are to be exercised.

14. We accordingly quash and set aside the F.I.R. bearing

No.181/2023, Police Station Sonegaon, District Nagpur only to the

extent of present applicant and charge-sheet culminating in

proceeding bearing Regular Criminal Case No.914/2024 before the

Court of 14th Joint Civil Judge, Junior Division and Judicial

Magistrate, First Class, Nagpur.

(Nandesh S. Deshpande, J.) (Urmila Joshi-Phalke, J.)

wadode

Signed by: Mr. Devendra Wadode Designation: PS To Honourable Judge Date: 01/10/2025 15:13:00